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Roudybush v. State

United States District Court, D. Kansas

July 31, 2017

JOHN ROUDYBUSH, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          ORDER AND NOTICE TO SHOW CAUSE

          JAMES P. O'HARA, U.S. MAGISTRATE JUDGE

         The pro se plaintiff, John Roudybush, has filed a motion to proceed with this action in forma pauperis (ECF No. 3), with an accompanying affidavit of financial status.[1] Plaintiff has also filed a motion for appointment of counsel (ECF No. 4), a petition for continuance (ECF No. 6), a motion for investigation and prosecution (ECF No. 8), and a motion for order directing the Kansas state court to change the venue of the criminal case pending against plaintiff by transferring it to this court (ECF No. 9). For the reasons discussed below, the court grants plaintiff's motion to proceed in forma pauperis, denies plaintiff's motion for appointment of counsel, grants in part and finds as moot in part plaintiff's petition for continuance, denies plaintiff's motion for investigation and prosecution, and denies the motion for order to the state court to change venue. Additionally, for the reasons discussed below, on or before August 16, 2017, the court orders plaintiff to show cause to the presiding U.S. District Judge why this case should not be dismissed.

         I. Motion to Proceed in Forma Pauperis and Petition for Continuance

         Section 1915 of Title 28 of the United States Code allows the court to authorize the commencement of a civil action “without prepayment of fees or security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.”[2] To succeed on a motion to proceed in forma pauperis, the movant must show a financial inability to pay the required filing fees.[3] “One need not be ‘absolutely destitute' to proceed [in forma pauperis], but [in forma pauperis] need not be granted where one can pay or give security for the costs ‘and still be able to provide [her]self and dependents with the necessities of life.'”[4] “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.'”[5] The decision to grant or deny in forma pauperis status under § 1915 lies within the “wide discretion” of the trial court.[6]

         On May 31, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, entered an order finding that certain aspects of plaintiff's financial affidavit were unclear and required clarification.[7] Specifically, the court noted a lack of clarity surrounding plaintiff's income over the last twelve months and plaintiff's interest in real property. The court ordered plaintiff to file a supplemental financial affidavit by June 14, 2017. On June 12, 2017, plaintiff filed a petition for continuance (ECF No. 6), seeking a 30-day extension of time to respond to the court's May 31, 2017 order. On July 27, 2017, plaintiff filed a supplemental financial affidavit (ECF No. 10).

         The court finds plaintiff's petition for continuance and supplemental financial affidavit clarify some of the information contained in plaintiff's initial affidavit. Although certain aspects of plaintiff's financial status remain unclear, the court will grant plaintiff's motion to proceed in forma pauperis. In light of the foregoing, the court denies as moot plaintiff's petition for continuance to the extent plaintiff seeks an extension of time to respond to the court's May 31, 2017 order. The petition for continuance is granted, however, to the limited extent plaintiff requests that access to the document be restricted on the basis that it contains protected health information. The clerk is directed to restrict access to ECF No. 6.

         II. Screening under 28 U.S.C. § 1915(e)(2)

         When a party is granted leave to proceed in forma pauperis, § 1915(e)(2) requires the court to screen the party's complaint. The court must dismiss the case if the court determines that the action (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from suit.[8] The purpose of § 1915(e)(2) is to “discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.”[9] The screening procedure set out in § 1915(e)(2) applies to all litigants, prisoners and non-prisoners alike.[10]

         In applying § 1915(e)(2) to the pleadings of a pro se litigant, the court must liberally construe the pleadings and hold them to a less stringent standard than formal pleadings drafted by attorneys.[11] This does not mean, however, that the court must become an advocate for the pro se plaintiff.[12] “To state a claim, the plaintiff must provide ‘enough facts to state a claim to relief that is plausible on its face.'”[13] The “court need not accept allegations that state only legal conclusions.”[14] Dismissal is appropriate when “it is obvious that the plaintiff cannot prevail on the facts []he has alleged and it would be futile to give [him] an opportunity to amend.”[15]

         Plaintiff's Complaint

         Plaintiff's complaint and the various accompanying attachments are difficult to comprehend. But it appears plaintiff brings claims against the State of Kansas, the Twenty-Eighth Judicial District Court, the Saline Board of County Commissioners, and numerous other defendants, stemming from a hernia injury plaintiff allegedly sustained while imprisoned in the Saline County Jail. The court liberally construes plaintiff's complaint as a 42 U.S.C. § 1983 action alleging that defendants were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment. Plaintiff also appears to assert negligence and assault claims related to his injury. Plaintiff seeks monetary damages, and asks the court to order federal prosecutors to bring criminal charges against defendants for alleged crimes set forth in his attached “criminal complaint.” Plaintiff also appears to challenge the validity of various state criminal proceedings, and in that regard, seeks a temporary restraining order, a writ of habeas corpus, and an order directing the state court to transfer the underlying criminal case to this court.

         Criminal Proceedings

         As an initial matter, to the extent plaintiff asks the court to order federal prosecutors to bring criminal charges against defendants, the Tenth Circuit has concluded that such an order “would improperly intrude upon the separation of powers.”[16] “‘Broad [prosecutorial] discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.'”[17] Additionally, none of the various federal criminal laws cited by plaintiff provide a private right of action.[18]

         The court finds plaintiff's claims challenging the validity of various state criminal proceedings should be dismissed. Plaintiff claims he has been “illegally prosecuted” and seeks a temporary restraining order and a writ of habeas corpus. The Younger abstention doctrine generally prevents federal courts from interfering with ongoing state criminal proceedings.[19] And a petitioner seeking federal habeas relief is generally required to exhaust state remedies before proceeding in federal court.[20] Plaintiff claims he “tried to appeal the lower court and was not accomplished due to the appeal is base on attachment from the lower court and doe to their involvement and influence it was not successful!”[21]This statement is insufficient to demonstrate that plaintiff has presented his claims to the state courts, including the state appellate courts.

         Section 1983 Claim

         As earlier indicted, plaintiff alleges he was refused medical attention for his alleged hernia injury while he was imprisoned in the Saline County Jail. This allegation is insufficient to state a claim under section 1983.[22]

         “A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.”[23] The Tenth Circuit has explained that a plaintiff alleging “deliberate indifference” must plead both an objective and a subjective component:

The objective component is met if the deprivation is sufficiently serious. A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety. In measuring a prison official's state of mind, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.[24]

         The court assumes, for purposes of this order, that plaintiff's alleged hernia injury was “sufficiently serious.” However, plaintiff's conclusory allegations that he was denied necessary medical care fail to establish the requisite culpability on the part of any defendant.

         Moreover, plaintiff hasn't alleged personal participation by any defendant.[25]“[P]ersonal participation is an essential allegation in a section 1983 claim.”[26] To the extent plaintiff seeks to impose liability on the County under section 1983, the County cannot be liable under section 1983 under a theory of respondeat superior. To impose liability on a municipality under section 1983, plaintiff must “identify a municipal ‘policy' or ‘custom' that caused the plaintiff's injury.”[27]

         Further, though it is difficult to ascertain all of the defendants that plaintiff intends to sue, the court observes that many are immune from suit. “The Eleventh Amendment doctrine of sovereign immunity bars actions for damages against a State, its agencies and its officials acting in their official capacities, including actions arising under section 1983.”[28] A state district court is a subdivision of the state and entitled to sovereign immunity.[29] State judges are absolutely immunity from section 1983 liability except for acts taken “in the clear absence of all jurisdiction.”[30] This immunity extends to judicial officers including court clerks.[31]

         State Law Claims

         Plaintiff asserts negligence and assault in the context of his alleged hernia injury. The above-described immunity issues notwithstanding, plaintiff fails to allege facts in support of such claims. Moreover, in light of the court's findings with respect to plaintiff's federal claims, the court lacks jurisdiction over these state-law claims. Federal courts are courts of limited jurisdiction.[32] When a plaintiff brings a lawsuit asserting both a violation of federal law and related claims arising from ...


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